Employment law update - Local Government …...Employment law update Darren Newman February 2020...

Employment law updateDarren Newman

February 2020

https://darrennewman.orgDarren@darrennewman.co.uk@DazNewman

Brexit and Employment Law

• Withdrawal Act 2018 provides a ‘standstill transition’

• All employment law carries on just the same until amended by Parliament

• Some ambiguity about authority of ECJ cases post transition

• Big issue is extent of ‘non-regression’ clause in new trade deal

Employment Bill 2020?

• Creating a new, single enforcement body,

• Requiring employers to distribute tips to employees

• Introducing a new right for all workers to request a more predictable contract.

• ‘Extending redundancy protections to prevent pregnancy and maternity discrimination’

• Allowing parents to take extended leave for neonatal care

• Introducing an entitlement to one week’s leave for unpaid carers.

• ‘Subject to consultation, the Bill will make flexible working the default unless employers have good reason not to’

Taylor review measures

• Written statement of terms for all workers from day one of assignment (April 2020)

• Abolition of Swedish Derogation (April 2020)

• Holiday reference period moves to 52 weeks (April 2020)

• Reduced threshold (from 10% to 2%) for employee request for Information and Consultation arrangements (April 2020)

• Continuity of employment preserved by breaks of up to one month (TBC)

Parental Bereavement Leave

• From April 2020

• Two weeks’ leave on death of child (under 18)

• Paid at lower rate of SMP

Exit Pay Cap

• New consultation on 95K cap – closed in July 2019

• Being dealt with this afternoon!

WM Morrisons Supermarkets plc v Various

claimants

• Waiting for decision from Supreme Court

• Was Morrisons vicariously liable for criminal breach of Data Protection Act by one of its IT managers

• Employee had downloaded employee data onto personal memory stick and then published it to the press and online

• Employee was personally motivated by hostility to employer and was sentenced to 8 years imprisonment

• What link is needed between unlawful act and employee’s duties?

• Should employers just insure against loss caused by such acts?

• Does Data Protection Act exclude vicarious liability for breaches of the Act?

Sleeping and the Minimum Wage

• Are sleepover workers working while asleep or are they just ‘available for work’?

• Royal Mencap Society v Tomlinson-Blake: Care workers (time work) working overnight shifts where they are given sleeping facilities but may be woken if needed

• Shannon v Rampersad and another: Worker given rent free studio above a care home plus £90pw. Must spend every night (10pm-7am) at home. Only rarely called upon to help overnight worker in care home. Claims each night as salaried hours work

• To be heard by Supreme Court 12/13 February

Uber v Aslam

• Are Uber drivers workers?

• Do they provide work for Uber or do they work for each customer and use Uber to facilitate the transaction? (Quashie v Stringfellows, Cheng Yuen v Royal Hong Kong Golf Club)

• To what extent can Tribunal put aside the contractual documentation and look to the ‘reality’ of the agreement (Autoclenz v Belcher)

• If they are workers, when are they working? (‘They also serve who only stand and wait’ – Milton)

• Supreme Court hearing in July 2020

Dewhurst v Revisecatch Ltd

• TUPE Says: “employee" means any individual who works for another person whether under a contract of service or apprenticeship or otherwise but does not include anyone who provides services under a contract for services

• So what does ‘or otherwise’ mean?

• Tribunal holds that it encompasses EU concept of ‘employment relationship’ – wide enough to cover ‘workers’

• Exclusion of ‘contract for services’ refers to those genuinely in business on their own account

• No appeal being brought – implications?

Holiday Pay

• Flowers v East of England Ambulance Trust – If overtime is regular and predictable rather than exceptional and unforeseeable then it should be included (Court of Appeal)

• Chief Constable of the Police Service of Northern Ireland v Agnew - Claims for a series of unlawful deductions do not depend on gaps between deductions of less than three months

Brazel v The Harpur Trust

• Term time only casual music teacher

• Had his holiday pay capped at 12.07% of his annual hours

• But normal WTR calculation leads to higher proportion than that

• EAT say no justification for capping his holiday – part-time workers can be treated more favourably

• Court of Appeal agrees – even though Regulations go beyond what directive requires

Kostal UK Ltd v Dunkley

• EAT had held that it was an unlawful inducement to

make pay offer direct to staff when union

negotiations broke down

• Court of Appeal overturns – law aimed at

derecognition, not temporary break

• Leave to appeal to Supreme Court being applied

for

London Borough of Lambeth v Agoreyo

• Primary school teacher suspended for alleged ‘inappropriate force’ with

two disruptive children

• Resigns same day – claims breach of contract

• High Court upholds claim – employer’s reason for suspension was unclear,

and no exploration of alternatives

• Court of Appeal overrules – High Court should not have interfered with

county court findings

• County court entitled to find there was ‘reasonable and proper cause’ for

suspension

• High Court wrong to apply a test of whether suspension was ‘necessary’

Upton-Hanson Architects v Gyftaki

• Employee suspended when she takes

unauthorised absence for personal reasons

• Resigns and claims constructive dismissal

• Tribunal upholds: no good reason for suspension

and no grounds for fair dismissal

• EAT – employer should have pleaded fair reason

for dismissal but didn’t – appeal dismissed

Q v Secretary of State for Justice

• Probation officer dismissed after her daughter was

put on ‘at risk’ register

• Tribunal holds her failure to disclose full details to

her employer was gross misconduct

• EAT upholds. Article 8 ECHR was ‘engaged’ but

employer’s action was proportionate in the

circumstances

Royal Mail v Jhuti

• Employee makes whistleblowing complaint to manager

• Manager then undermines her and gives misleading impression of her performance

• That leads to another manager ruling that she has failed her probation and dismisses her

• Supreme Court says the dismissal was for whistleblowing

• The motives of the first manager could be imputed to the employer, despite innocence of the second manager

Okwu v Rise Community Action

• Whistleblowing allegation must ‘in the reasonable belief’ of the employee be made in the public interest

• Employee’s three month probation extended by three months over concerns about her performance

• She responds with a number of complaints including potential Data Protection breaches resulting from her having to use her own phone

• Employer then dismisses

• Tribunal says not whistleblowing – private disputes, not in the public interest

• EAT send back – she only has to believe it is in the public interest and ET should have been more clear about the reason for the dismissal

East London NHS Foundation Trust v

O’Connor

• Employee’s role deleted as part of restructure exercise

• Offered alternative – accepts on a trial basis

• Trial extended, then he is off sick, but eventually he refuses to sign new contract

• Employer says no entitlement to redundancy as he is beyond 4 week trial

• EAT says trial period didn’t apply – he was not under notice of dismissal when alternative work was offered

Raj v Capita Business Services Ltd

• Employee claims unwanted shoulder massage was

sexual harassment

• ET says no: purpose was ‘misguided encouragement’

and contact was with ‘gender-neutral area of the body’

• EAT say no error of law – burden of proof did not shift

to employer to show behaviour was not related to sex

• Can that be right?

Forbes v LHR Airport Ltd

• Employee shares offensive image on Facebook

• That is seen by a colleague, who shows it to

claimant while at work

• Claim for harassment dismissed – image was not

shared by colleague in the course of employment

• Colleague was not subject of harassment claim –

though perhaps should have been

Bessong v Pennine Care NHS

• Mental health nurse assaulted and racially abused by

patient

• Argues that employer is liable for racial harassment

that it failed to take steps to prevent

• EAT says no – employer’s conduct must be ‘related to’

protected characteristic

• But employee won indirect discrimination claim based

on employer’s failure to apply its own reporting regime

Religion and Belief

• Ethical Veganism: Casamitjana v League Against

Cruel Sports

• Gender critical feminism: Forstater v CGD Europe

• Religious objection to transgender identity:

Mackereth v Department for Work and Pensions

Oxford Bus Company v Harvey

• Bus driver is a Seventh Day Adventist – needs to avoid Friday evening / Saturday working

• Required to work 5 day out of 7 rota – including Fridays and Saturdays –claims indirect discrimination

• Tribunal finds no justification – employer could have accommodated his need

• EAT allow appeal – issue was not the treatment of the individual, but the justification for the rule

• Employer was concerned that any exceptions would lead to further requests and undermine rota

• Sent back to Tribunal to consider justification afresh.

Heskett v Secretary of State for Justice

• Age discrimination challenge to probation service pay scales

• Rate of progression had slowed, exacerbating gap between those over 50 and those who were younger

• EAT upholds finding that this was ‘proportionate means of achieving a legitimate aim’

• Not a desire to cut costs, but a legitimate aim of operating within financial constraints set by Government – employer entitled to break even

• Desire to reform was also relevant

South West Yorkshire Partnership NHS Foundation

Trust v Jackson

• Number of claims arising from redundancy and restructuring

• One employee had important letter about redeployment sent to work address while she was on maternity leave

• ET finds maternity discrimination

• EAT sends back – failure to look at the ‘reason why’ the unfavourable treatment occurred

Ali v Capita Customer Management

Hextall v Leicestershire Police

• Paying enhanced maternity pay, but only statutory Shared Parental Leave Pay is not discriminatory

• Those taking shared parental leave not comparable to those taking maternity leave

• If based on contractual term it should be an equal pay claim

• Exclusion for enhanced terms based on pregnancy and childbirth applies – no claim for indirect discrimination possible

• In any event, men not put at a particular disadvantage, and policy was justified

Parnaby v Leicester City Council

• Caretaker dismissed for long-term absence due to work-related stress

• Two separate periods of illness, six months each, with a six month gap

• Tribunal finds no disability – condition has not lasted for a year and condition improved when he was dismissed

• EAT send back – had to consider position assuming he would not have been dismissed

• ET also needed to consider whether condition was ‘likely’ to recur – test was whether it ‘could well happen’

Tesco Stores Ltd v Tennant

• Employee goes off sick with depression September 2016

• Brings claim in September 2017

• ET finds she became disabled on 6 September 2017 when condition had lasted a year

• EAT says she can’t claim for disability discrimination for acts before the date she became disabled

• Technicality – employee failed to appeal on point that at some stage it must have been expected that the condition would last for 12 months

Chief Constable of Norfolk v Coffey

• PC refused transfer because of hearing loss

• Not disabled as no real effect on her life or work

• Court of Appeal finds direct discrimination –

employer perceived her as having (or being likely

to develop) the elements of disability

• No need to have actual belief that she was

disabled within meaning of the Equality Act

Scott v Kenton Schools Academy Trust

• Spanish teacher is complicit in his Head of Department’s cheating of controlled assessments

• Found to have anxiety disorder affecting his judgment

• Employer dismisses anyway

• ET finds fair dismissal and no discrimination. No proof that anxiety led to his misconduct

• EAT says ‘causation’ is a wider test than that. Has the misconduct ‘arisen in consequence’ ?

• Finding of fair dismissal upheld, but discrimination case sent back to fresh Tribunal

iForce v Wood

• Worker given final written warning for refusing to work near the

warehouse door

• Claims disability discrimination – believed that working near the door

was colder and damper and would worsen her arthritis

• Employer shows that temperature at warehouse door is not any

lower

• EAT holds this means that her unfavourable treatment was not

‘because of something arising in consequence of her disability’

The Range of Reasonable Responses NewsletterExclusive content, every month

To sign up visit darrennewman.org